Does Yale Law School’s Antidiscrimination Policy On Subsidies For Student Employment Discriminate On The Basis Of Religion?

Following up on my previous post, Yale Law School Yanks Stipends From Students Who Work For Christian Firms:

Ilya Somin (George Mason), Does Yale Law School’s Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?:

Yale Law School recently adopted a policy under which students cannot get school-subsidized grants to support public interest summer jobs, postgraduate fellowships, or targeted loan forgiveness for those working at relatively low-income jobs, if the job in question is with an employer that discriminates on the basis of race, religion, veteran status, marital status, veteran status, or — most controversially — sexual orientation. The policy change was in large part the result of student protests against a Federalist Society-sponsored speaker from the Alliance Defending Freedom, a Christian conservative public interest law firm that had successfully represented the plaintiff in the Masterpiece Cakeshop case.  The owner of the bakery argued that the state of Colorado violated his freedom of speech and freedom of religion by requiring him to bake a cake for a same-sex wedding to which he objected on religious grounds.

In the aftermath of the policy shift, many on the right charged that it amounts to religious discrimination against theologically conservative Christian employers who refuse to hire gays and lesbians because homosexuality conflicts with their religious commitments. In a letter to Yale Law School Dean Heather Gerken, Republican Senator Ted Cruz claimed that the policy violates federal civil rights laws banning discrimination on the basis of religion, and announced his intention to have the Senate Judiciary Committee hold an investigation of the policy. Dean Gerken has issued a public statement denying Cruz’s claims. Ironically, this is a case where supposedly pro-free market conservatives want to impose tighter regulations on a private organization, while the left — which normally favors expansive antidiscrimination laws – is defending Yale’s freedom of association.

Who has the right of this dispute? When it comes to religious discrimination, Gerken is correct, and her critics on the right are wrong. But these sorts of antidiscrimination policies do raise other difficult questions. ...

The fact that the Yale policy does not discriminate on the basis of religion does not mean that its rules are above criticism. In my view, private organizations should have broad rights of freedom of association — and that goes double for situations like this one where the school is simply refusing to subsidize students who work for a particular employer, rather than attempting to bar them from taking such positions entirely. Senator Cruz and the federal government should leave Yale alone.

But even if the feds should stay out of the matter, it is still worth asking whether Yale's policy is entirely justified. There are, I think, cases where universities can legitimately choose to deny any financial support to groups with odious hiring practices and agendas. For example, few would object to the Yale policy if it was limited to refusing to fund students working for groups that discriminate on the basis of race, such as those who refuse to hire African-Americans because they believe blacks are inferior to whites. As I see it, employment discrimination on the basis of sex and sexual orientation is comparably odious, and has an almost equally sordid history.

The case for the Yale policy is further strengthened by the fact that Dean Gerken indicates that the school will create "an accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles." ...

At the same time, it is also the case that antidiscrimination rules have a strong tendency to expand beyond the relatively easy cases to ones that are far more questionable.  ... It may be that the slippery slope risk so great, that it's not worth going down this route in the first place. As a practical matter, it is unlikely that more than a very small number of Yale law students will seek out subsidies to work for organizations that discriminate in the ways the current policy seeks to forbid. Letting those few slip through the cracks, as it were, may be a price worth paying to avoid slippery slopes. At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.

David Bernstein (George Mason), Ilya Somin Says No, But I'm Not So Sure:

Here’s the thing: a neutral antidiscrimination rule that happens to impinge on religious organizations isn’t “discrimination” against religion. However, its is religious discrimination when you are enforcing or expanding such a rule because of hostility to religion (as may be the case at Yale), and being deliberately indifferent to the interests of religious people in a way that you wouldn’t be for any other group with a minoritarian perspective also would be (as may be the case at Yale). Yale hasn’t provided detailed guidance on how it’s going to apply its antidiscrimination policy and what exceptions if any will be made, so we will just have to see how it works out. Meanwhile, the Law School, like all law schools, discriminates on the basis of race in admissions, so I’m not buying the line that principled opposition to discrimination allows for no accommodations for perceived social needs.

Cass Sunstein (Harvard), Ted Cruz Could Use a Refresher Class on the First Amendment:

Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment?

To respond to those questions, you don't even need to know what Yale is accused of doing. The answers are No and No.

Yet, in a highly publicized letter to Dean Heather Gerken, Sen. Ted Cruz, R-Texas, accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion — and is therefore unconstitutional. ...

Cruz's concern is that some religious organizations discriminate on the basis of sexual orientation. In his view, it is discriminatory to discriminate against them for that reason.

He’s certainly entitled to object to the new policy. The problem with his letter is that the Constitution and its Bill of Rights apply only to public officials — not to the private sector, and not to private universities at all.

This is an elementary point. Every member of the Supreme Court agrees with it; there is no division here along ideological lines. By all accounts, Cruz is an excellent lawyer, and so his error is a genuine puzzle.

To see the point, consider the text of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Because the text is aimed at Congress (and, after the Civil War, applied to state governments as well), it does not constrain private institutions.

If the local grocery store doesn't want to hire anyone who voted for Cruz in a presidential primary, it is perfectly entitled to do that, as far as the Constitution is concerned. If a private university decides that it only wants to invite conservative speakers in 2019, to have one-sided discussions about affirmative action, to forbid military recruitment on its campus, or to celebrate Christmas, the Constitution does not stand in its way. ...

[D]efenders of Cruz's letter might note that various civil-rights laws reject this conclusion. Such laws forbid private employers from discriminating on the basis of race, color, religion, sex and national origin. Other laws forbid private institutions receiving federal funds from discriminating on the basis of race, color, sex or national origin.

Interestingly, such laws do not forbid private institutions, including private universities, from discriminating on the basis of religion — in part because religious universities discriminate on religious grounds, and many people believe that they are entitled to do exactly that. But there are many civil-rights laws, and some of them contain some ambiguities.

If a law school really does discriminate against religious believers, it might be violating one of them. But that’s not a point about the Constitution. Even if discrimination against religious institutions by a private university might violate some law enacted by Congress — a tricky legal question — it would not violate the First Amendment, which is Cruz’s focus.

Eric Segall (Georgia State), Yale Law School, Ted Cruz, and Religious "Liberty" Run Amok:

This decision is completely within Yale's rights and should be applauded by everyone in favor of equal rights (I have no connection to Yale Law School).

Nonetheless, the religious community responded with outrage that this policy might affect some religious organizations that don't hire gays and lesbians. This discontent led Senator Ted Cruz, always willing to bend truth to serve his own political agenda, to issue an extraordinary letter to Yale Law School, which accuses Yale of adopting a "transparently discriminatory policy: namely, that Yale will no longer provide any stipends or loan repayments for students serving in organizations professing traditional Christian views or adhering to traditional sexual ethics."

This accusation is totally false. Yale does no such thing but simply denies its funds to any organization that refuses to hire gays and lesbians (or other protected groups). Again, according to Dean Gerken, "our policy does not single out any student based on religion. Nor does it single out any organization based on ideology, litigation strategy, or political goals. Instead, it is designed to protect all students — including the many Christians and other people of faith among our students and alumni."  ...

Ted Cruz, the GOP, and many conservatives equate discrimination against gays and lesbians with religious liberty, just as many racists in the 1950's and 1960's justified segregation based on their religious values. As true today as it was then, religious values should not justify discrimination outside the internal practices of churches, synagogues, mosques, and temples. But even if all of that is subject to reasonable debate, Yale, a private institution, is under no legal or moral obligation to allow discriminatory organizations to access its own resources. One would have thought that an alleged libertarian like Ted Cruz would understand that core principle instead of bringing the heavy hand of the federal governmental into Yale's internal affairs.

• Statement from Yale Law School on Nondiscrimination (April 4, 2019)
• A Note from Dean Heather Gerken: Yale Law School’s Commitment to Nondiscrimination (April 10, 2019)
• National Review, Josh Hawley Demands DOJ Hold Yale Law School Accountable for Anti-Christian Discrimination
• USA Today op-ed:  So Yale Law School Endorses Anti-Religious Bigotry Now?, by Samuel Adkisson (J.D. 2018, Yale)